Observance of human rights and freedoms in forced selection of biological samples

Abstract

The article considers the problems of restricting certain human rights and freedoms when taking away biological samples of a person in compulsory criminal proceedings. An analysis of the application of coercive measures in the process of obtaining samples for examination was provided. The boundaries and admissibility of such coercion are considered. Attention is focused on the legislation of Ukraine and some foreign countries, a number of decisions of the European Court of Human Rights and the Supreme Court on outlined issues.

Of the view that, given the divergent views of jurists and scholars, the European Court of Human Rights has developed a common position on the issue of coercive sampling for comparative research. In our opinion, its essence boils down to the fact that in itself criminal proceedings, as a mechanism for the State's reaction to the criminal behavior of persons, already contain coercion, which is its basic method in the fight against crime, therefore, if certain conditions are met for the participants, who carry out criminal prosecution, it is possible to apply it when conducting investigative (search) actions, including when obtaining samples for examination. Such coercive measures should be proportionate and not exceed the limits of necessity. Accordingly, law enforcement officers, according to the current legislation, have to clearly understand and be able to determine the boundaries of permissible influence on a person, take care of the preservation of his health, honor and dignity, fulfilling the norms of article 3 of the Constitution of Ukraine.